Decision Date: 10/17/95 Archive Date:
11/01/95
DOCKET NO. 93-26 107 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco,
Texas
THE ISSUE
Entitlement to service connection for residuals of a back
injury.
ATTORNEY FOR THE BOARD
Suzie St. Vil, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1960 to
August 1969. The veteran acts as his representative in this
case.
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of May
1993, by the Waco, Texas Regional Office (RO), which denied
the veteran's claim for service connection for residuals of
a back injury. Following the receipt of medical records in
August 1993, a rating action of October 1993 confirmed the
previous denial of the claim for service connection. The
appeal was received at the Board in November 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he is entitled to
service connection for the residuals of a back injury which
he sustained while on active duty. The veteran maintains
that he had no problems with his back prior to entering
military service. The veteran indicates that he sustained a
back injury as a result of a fall in 1961 in Korea; he
states that no X-rays were taken, but the pain disappeared.
The veteran further indicates that, ever since the fall, he
continued to have recurring back pain in the same area. He
states that, over the years, he has treated himself with
over the counter medications until the pain and swelling
became so bad that he sought medical help from 'Medplus.'
The veteran asserts that he sought treatment from Medplus in
1988 because he was in such great pain that he was unable to
lift or bend; he states that, while the doctor indicated
that he could not find anything wrong with his back, X-ray
studies revealed an old injury of a cracked vertebra. The
veteran further asserts that, upon telling the doctor of his
back injury in service, the doctor stated that it was
possible that his back problem could have resulted from the
old injury in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim for service connection for residuals of
a back injury.
FINDINGS OF FACT
1. All indicated development of the record has taken place.
2. During service, the veteran was treated on several
occasions for complaints of back pain and on one occasion
slipped and bruised his hip.
3. Symptoms associated with the veteran's complaints of
back pain were acute and transitory in nature, and resolved
without residual disability.
4. The current back disorder, degenerative joint disease of
the lumbar spine, was not present until many years after
service, and is not otherwise shown to related to service.
CONCLUSION OF LAW
A chronic back disorder, to include degenerative joint
disease, was not incurred in or aggravated by the veteran's
active service, nor may incurrence of degenerative joint
disease be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, we note that we have found that the veteran's
claim is "well-grounded" within the meaning of 38 U.S.C.A. §
5107(a); effective on and after September 1, 1989. That is,
we find that he has presented a claim which is plausible.
Moreover, after careful review of the evidentiary record, we
are also satisfied that all relevant facts have been
properly developed. Therefore, no further assistance to the
veteran is required to comply with the duty to assist as
mandated by 38 U.S.C.A. § 5107(a).
The record reflects that the veteran entered military
service in August 1960; an enlistment examination revealed
no complaints or findings referable to a back disorder. The
service medical records reflect that the veteran was seen in
August 1961 for complaints back pain after lifting a heavy
object. It was noted that he had no past history of back
trouble. Examination of the back was negative, except for
slight paravertebral muscle spasm. In March 1962 the
veteran slipped and bruised his hip on a rock. No
complaints or findings referable to the back were noted. In
December 1965, the veteran was again seen for complaints of
back pain after carrying weights. No abnormalities were
noted on examination of the back; the impression was back
muscle pains. The veteran was again seen in April 1966 with
complaints of low back pain; examination of the back was
negative. During the discharge examination, conducted in
August 1969, the veteran reported "yes" to having a history
of back trouble. The actual examination was negative for
any findings or diagnosis of a back disability. The
clinical evaluation of the spine and extremities was normal.
The veteran's claim for service connection for a residuals
of a low back injury (VA Form 21-526) was received in
February 1993. On that form, the veteran indicated that he
had received treatment for his back from Medplus in the
1980's and had a cracked vertebra from his injury in
service.
Of record is a letter from the veteran, dated in April 1993,
wherein he indicated that Medplus had been unable to find
any copies of medical records regarding treatment of his
back. He reported that Medplus disposed of their records
after 3 to 4 years. The veteran indicated that he did not
seek medical treatment before 1988, because he was able to
handle the pain and discomfort when he was younger; he
stated, however, that as he grows older the back is
beginning to give him more trouble. The veteran further
indicated that X-rays taken by Medplus showed that he had an
old injury of a cracked vertebra. Attached to this letter
was a copy of a check from the veteran payable to Medplus,
dated March 17, 1988.
Received in August 1993 was a VA outpatient treatment
report, indicating that the veteran reported a history of
injury to his back in 1961 as a result of a fall; it was
noted that he was treated again in 1963 and 1965 for flare
ups. It was reported that the veteran had been experiencing
intermittent low back pain since service, and treating it
conservatively himself with bed rest, heat to the area and
medications. It was further reported that the veteran had a
recent flare up and was seen and treated at Providence
Hospital. Examination of the back was negative, except for
tenderness of the lower back on palpation. The examining
physician reported that X-ray study of the lumbar spine from
Providence revealed degenerative joint disease of several
vertebrae. The diagnosis was degenerative joint disease of
the lumbar spine, with chronic intermittent low back pain,
probably muscular in nature.
Also received in August 1993 was a copy of an emergency room
report from Providence Hospital, showing that the veteran
had been admitted on August 15, 1993. However, the report
does not reflect a diagnosis nor the type of treatment
rendered to the veteran.
The Board notes that service connection may be granted for
disability (ies) resulting from disease or injury incurred
in or aggravated by military service. 38 U.S.C.A. §§ 1110,
1131. When the condition noted in service is not shown to
be chronic, there must be a showing of continuity after
service to support a grant of service connection. 38 C.F.R.
§ 3.303(b).
The Board notes that, while it is shown that the veteran did
receive treatment in service for complaints of back pain
associated with lifting, examinations of the back were
consistently negative. There is no objective evidence of a
back injury in service. The veteran was shown to have
slipped and bruised his hip in March 1962, but there was no
indication of a back injury at that time. Significantly,
his separation examination of August 1969 noted his history
of back trouble, but there was no findings of an actual back
disorder. Moreover, while the veteran has reported that he
received treatment for his back in the 1980's, more than 10
years after service, the earliest postservice evidence of
record showing treatment of a low back disorder was in
August 1993.On the basis of the evidence of record, we
conclude that the veteran's current back disorder, including
degenerative joint disease, first appeared at a time too
remote from service to be considered of service origin.
Therefore, the preponderance of the evidence shows that any
back injury in service was no more than acute and transitory
and did not result in any chronic disability. Accordingly,
the veteran's claim for service connection for the residuals
of a back injury is denied.
ORDER
Entitlement to service connection for residuals of a back
injury is denied.
Steven L. Cohn
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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